ForewordIt can be said that it is not an isolated situation in which an enterprise discovers that its design patent has been infringed by someone else, and resolutely files an appeal, only to lose the case because it is not clear about the scope of legal protection. It is suggested that before applying for a patent, enterprises need to understand how the scope of protection of the patent right is determinedIf you don't know, let's read on!
First, let's talk about what is a design patent
Design refers to a new design that is aesthetically pleasing and suitable for industrial application made on the whole or part of the shape, pattern or combination thereof, as well as the combination of color and shape and pattern. A design is completely different from the object of protection of an invention or utility model, and it protects the "design" of the product rather than the "technical solution", that is, it does not protect the function, internal structure, materials and other features of the product.
2. How is the scope of protection of a design patent determined?
According to paragraph 2 of Article 56 of the Patent Law of the People's Republic of China (2020 Amendment):The scope of protection of a design patent right shall be subject to the design of the product expressed in ** or **, and a brief description may be used to explain the design of the product represented by ** or **.
In determining the scope of protection of a design patent in accordance with the provisions of the Patent Law and the Implementing Rules in conjunction with the examination guidelines, the following aspects shall be considered:
The scope of protection of a design is the design of the product, and it protects the design of a specific productIf the products are neither of the same kind nor similar to each other, even if the designs are the same, they will not fall within the scope of protection of the design
Scope of protection of design patent rightsIt does not include design content that does not have a significant impact on the overall visual effect, such as the function, internal structure, and technical performance of the product
3. The size, material, internal structure of the product that does not affect the overall visual effect, which does not fall within the scope of protection of design patents.
If the design patentee claims protection of color, it shall declare it in the brief description of the patent, and shall also submit ** or ** containing color. In the case of a color for which protection is claimed, the color for which protection is claimed shall be regarded as one of the elements to limit the scope of protection of the design patentIn determining infringement, the shapes, patterns, colors and combinations contained in the design are compared with the shapes, patterns, colors and combinations of the alleged infringing products.
The above is an introduction to the scope of protection of design patents, I hope it can help you.